164 N.W. 105 | S.D. | 1917
Plaintiff, as administrator of the estate of one Hall, deceased, brought this action for the purpose of foreclosing a certain real estate mortgage executed by the defendant Bolt as security for the payment of a certain promissory note for $2,000 and interest. The note and mortgage were executed on the 27th day of December, 1907. Defendants answered separately. Defendant Bolt alleges as a defense that the mortgage had been satisfied, and extinguished by a conveyance of the mortgaged property from her to Hall during his lifetime. Defendant Hulett Land & Cattle Company claims to be a purchaser in good faith of the mortgaged property from Bolt, for value, and without notice of any claim by decedent or by plaintiff that ■ the said mortgage still constituted a lien upon the mortgaged property. The trial court found, that the indebtedness evidenced by the said note was still unpaid, and that' said mortgage constituted a valid first lien on the mortgaged1 property, superior to the rights of the defendant Hulett Land & Cattle Company. Decree- of foreclosure was entered accordingly, and defendants appeal.
While appellants assign numerous alleged errors, but three questions merit the consideration of the court:
It is first contended by appellants that the complaint does not state facts sufficient to constitute a cause of action. The complaint, so far as the particulars complained of are concerned, is similar to the complaint in Fruth v. Bolt, 158 N. W. 733, recently before this court, and what was said relative to the’complaint in that case applies with equal force in this case. On the 1st day of April, 1908, the mortgagor (Bolt) executed a deed, containing full covenants of warranty, conveying the legal title to the mortgaged premises to Hall (the mortgagee), and on the same day Hall (the mortgagee) executed a deed containing similar covenants, reconveying the title to said premises to Bolt. Appellants contend that the conveyance from Bolt to Hail constituted a merger of the mortgage lien, with the fee title in Hall, and that the mortgage thereby became extinguished and satisfied, and that, when Hall reconveyed to Bolt, warranting the land to be free from incum
“As the law of merger depends mostly, if not entirely, upon the intention of the parties, it follows that, when the parties express that intention, such expression of intention must be recognized by the courts. When such intention is not expressed, the court must endeavor to ascertain it by the circumstances connected with the transaction, or must indulge in some presumption by which prima facie its existence may be determined.” Devlin on Deeds (3d Ed.) § 1332.
In this case there is nothing in the deed from Bolt to Hall to indicate the intention of the parties in this particular, except the covenant. against incumbrances; and the same is true of the deed from Hall to Bolt. But there are other facts and circumstances connected with the transaction that warrant the conclusion of the trial court that no merger was intended.
“That the same are free and clear of all incumbrances whatever, except subject to a mortgage of said land recorded in Book 21, page 251, of the Mortgage Record of said register of deeds’ office in Meade county.”
Page 251 of Book 21 of the Mortgage 'Records of Meade county contains the record 'of the mortgage sought to be foreclosed by this action. This is' a positive recognition by said defendant and an admission by her that the first mortgage was still in force and constituted a' subsisting lien on the property. There is also evidence in the record tending very strongly to prove that Bolt paid interest on the mortgage for a considerable length of' time after the execution of the deed from her to Hall, and that at least a: part of the indebtedness .'secured by the second mortgage was unpaid 'interest on the first mortgage that accrued after the execution of the said deeds. Again, the note secured by the mort
The judgment and order appealed from are affirmed.